Citation Nr: 9818667
Decision Date: 06/18/98 Archive Date: 06/23/98
DOCKET NO. 94-45 769 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to a disability evaluation in excess of 30
percent for post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Martin F. Dunne, Counsel
INTRODUCTION
The veteran served on active duty in the Armed Forces from
October 1966 to September 1969, including service in Vietnam.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a September 1992 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Paul, Minnesota.
CONTENTIONS OF APPELLANT ON APPEAL
Essentially, the veteran contends that the RO was incorrect
in denying the benefits sought on appeal. He maintains, in
substance, that his post-traumatic stress disorder (PTSD)
with depression is more severely disabling than currently
evaluated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the assignment of a disability evaluation
in excess of 30 percent for PTSD.
FINDINGS OF FACT
1. All relevant evidence necessary for the equitable
disposition of the veteran’s claim has been obtained by the
RO.
2. The veteran’s PTSD is currently manifested by
occupational and social impairment due to such symptoms as
depressed mood, suspiciousness, and sleep impairment.
CONCLUSION OF LAW
The criteria for the assignment of a disability evaluation in
excess of 30 percent for PTSD have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 44.1, 4.2, 4.3, 4.7,
4.10, 4.130, 4.132, Diagnostic Code 9411 (1996 & 1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran served on active duty in the Army, including
service in Vietnam from January 1969 until September 1969.
Post-service, he underwent VA outpatient treatment and VA
psychiatric evaluation. He reported several stressful events
associated with combat. VA psychiatric examination found
PTSD with a history of major depression. As a result,
service connection was granted in an October 1990 rating
decision, and a 30 percent evaluation was assigned, effective
from February 1990, the date of receipt of the veteran’s
claim. This 30 percent evaluation has since remained in
effect.
The veteran is asserting that his PTSD is more severely
disabling than the 30 percent evaluation currently assigned.
The veteran’s VA outpatient treatment records for 1991
through 1996 show that he has been receiving group and
individual therapy for PTSD, on an average of two to three
times a month. In May 1992, he was hospitalized for a week
at a VA facility for suicidal thinking and intention, as well
as through a plan via the PTSD program. While hospitalized,
he received passes to go to work and to church. He responded
to treatment and, at the time of hospital discharge, he was
not suicidal or psychotic. He said that his depression was
improved since admission and he was able to go to work full-
time. He was discharged with anti-depression medication and
follow-up treatment scheduled in the PTSD program. He was
also scheduled to receive additional one-to-one counseling
through his church counselor.
In June 1992, the veteran underwent VA psychological testing
which found that he was experiencing a great deal of
psychological distress, including anxiety and depression. He
was socially withdrawn and suspicious of others. He was
using somatization and repression excessively to cope with
psychological distress. There was also strong evidence of
family and marital difficulties. The diagnoses were rule out
PTSD, and major depression, provisional.
The veteran was afforded a VA psychiatric examination in
January 1993 to evaluate his PTSD. By history, it was noted
that he had had a previous suicide attempt, that he was
having marital problems, and that he and his wife had been
seen in pastoral counseling. However, the problems were
ongoing and, at the time of the examination, he and his wife
were divorced, his wife having decided that she could not put
up with his symptomatology any more. At the time, he was
living alone and working full time. He was in industrial
counseling with his minister on a weekly basis and the church
had appointed someone to visit him regularly to help him
socialize. On mental status examination, he was oriented,
alert and cooperative. Affect was characterized by agitation
and some lability. Speech was characterized as pressure
befitting the affect, otherwise normal. His associations
were coherent and relevant, and intellectual functioning
appeared grossly intact. He had difficulty sleeping because
of nightmares occasionally, and various violent dreams
somewhat more frequently. He did not have flashbacks, but
had daily intrusive memories and other PTSD symptoms. He had
crying spells, gained weight, and suffered from survival
guilt. PTSD with marked dysthymic aspects was diagnosed.
In December 1993, VA received a letter from a friend who had
known the veteran since grammar school. He essentially
related how the veteran had changed over the years,
particularly after returning from Vietnam.
The veteran’s VA outpatient treatment records for January and
March 1994 show that he was working from 40 to 55 hours a
week at two jobs, one full time and one part time. He
related that he enjoyed his work, particularly working the
night shift because there was no one around.
In April 1994, the veteran testified at a personal hearing
which was held at the RO. A transcript of that hearing is of
record. At the hearing, he essentially testified as to his
current and past psychiatric condition, treatment being
received, his symptomatology, his social and family life, and
employment.
In September 1996, VA received a letter from the veteran’s
pastor which essentially noted that the veteran and his wife
received counseling from April 1990 through 1991, and then
again for several appointments in the summer and fall of
1992. The purpose of the counseling was to bring healing to
them individually and to their afflicted, then broken
marriage. It was the pastor’s opinion that the veteran’s
PTSD symptoms, such as becoming angry, grouchy, and full of
rage, had a major negative effect on his family relationship,
and probably contributed greatly to his eventual divorce.
The veteran was examined by VA in August 1997, at which time
he was still having trouble sleeping and many intrusive
thoughts, but to somewhat less extent than he had had
originally. Some of his most difficult current aspects were
his tendency to overreact, blow up, and get angry. At work,
he had had some explosive outbursts, and he was having some
trouble trying to control himself. He was hypervigilant. He
still felt a lot of grief about the deaths he had witnessed
in Vietnam and the traumas he had gone through. He was
afraid to go to the traveling Vietnam wall. He frequently
cried, always felt anxious, and had trouble relating to
others. At times, he had some suicidal ideas, but denied
ever having suicidal plans. He gave a history of not being
able to hold a steady job, although he had had his current
job working in a printing firm since 1989, and was working
regularly. He was living alone and did his own cooking. He
saw his two daughters on weekends, took them to lunch, and on
day trips. He attended church regularly, was going to
counseling, did some jogging, watched television, and was
sleeping pretty well at night. On mental status examination,
he appeared somewhat depressed, but certainly not suicidal.
He spoke easily and communicated well. He seemed somewhat
obsessive and worrisome, but there were no psychotic
manifestations. In the examining physician’s opinion, the
veteran’s PTSD and depression symptoms were somewhat less
prominent than they had been. The diagnoses were chronic,
moderate, dysthymia and chronic, mild, PTSD. The GAF (Global
Assessment of Functioning) score assigned his condition was
65 out of 100, of which 50 percent was due to depression and
50 percent due to PTSD.
Analysis
As a preliminary matter, the Board finds that the veteran’s
claim is plausible and capable of substantiation. A mere
allegation that a service-connected disability has become
more severe is sufficient to establish a well-grounded claim
for an increased rating. See Caffrey v. Brown, 6 Vet. App.
337, 391 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992). The Board is also satisfied that all relevant facts
have been properly developed and no further assistance to the
veteran is required in order to comply with the duty to
assist. See 38 U.S.C.A. § 5107(a).
VA utilizes a rating schedule as a guide in the evaluation of
disabilities resulting from all types of diseases and
injuries encountered as a result of or incident to military
service. The percentage ratings represent, as far as can
practicably be determined, the average impairment in earning
capacity resulting from such diseases and injuries and their
residual conditions in civil occupations. Individual
disabilities are assigned separate diagnostic codes. See
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. It is thus essential,
both in the examination and in the evaluation of disability,
that each disability be reviewed in relation to its history.
See 38 C.F.R. § 4.41. However, where entitlement to
compensation has already been established and an increase in
the disability rating is at issue, it is the present level of
disability that is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria for that rating. Otherwise,
the lower rating will be assigned. See 38 C.F.R. § 4.7. Any
reasonable doubt regarding a degree of disability will be
resolved in favor of the veteran. See 38 C.F.R. § 4.3.
By regulatory amendment effective November 7, 1996,
substantive changes were made to the schedular criteria for
evaluating psychiatric disorders, as defined in 38 C.F.R.
§§ 4.125-4.132. See 61 Fed. Reg. 52695-52702 (1996). Where
the law or regulations governing a claim change while the
claim is pending, the version most favorable to the claimant
applies, absent congressional intent to the contrary. See
Karnas v Derwinski, 1 Vet. App. 308, 312-313 (1991).
Accordingly, to ensure that the veteran is given every
consideration with respect to the instant claim, the Board
will review both the former and the revised schedular
criteria to determine the proper evaluation for the veteran’s
disability due to PTSD.
Prior to November 7, 1996, PTSD was evaluated using criteria
from the general rating formula for psychoneurotic disorders.
See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Under
this formula, a 30 percent rating was assigned where there
was definite impairment in the ability to establish or
maintain effective and wholesome relationships with people,
with psychoneurotic symptoms resulting in such reduction in
initiative, flexibility, efficiency and reliability levels as
to produce definite impairment. The term “definite” has
been defined as "distinct, unambiguous, and moderately large
in degree.” It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." O.G.C. Prec. 9-93, 59 Fed. Reg. 4752 (1994).
See also Hood v. Brown, 4 Vet. App. 301 (1993). A 50 percent
rating required the medical evidence to show that the
veteran’s ability to establish or maintain effective or
favorable relationships with people was considerably
impaired. By reason of psychoneurotic symptoms the
reliability, flexibility and efficiency levels were so
reduced as to result in considerable industrial impairment.
Under the newly revised criteria, set forth at 38 C.F.R.
§ 4.130, Diagnostic Code 9411 (1997), a 30 percent rating is
assigned where there is occupational and social impairment
with an occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, and recent events). A 50 percent evaluation is
assigned for occupational and social impairment with reduced
reliability and productivity due to such symptoms as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than one a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships.
Following a careful review of the evidence, the Board finds
that the veteran’s PTSD meets, but does not exceed, a 30
percent evaluation under either the former or the revised
schedular rating criteria. The reports of the recent VA
psychiatric evaluations, including evaluations noted in the
veteran’s outpatient treatment reports, contain no findings
that would support a higher evaluation. His clinical notes
for early 1994 show that the veteran was working from 40 to
55 hours a week, regularly attends church, and is receiving
ongoing treatment for his PTSD, in which he is an active
participant in group discussions. He has frequent thoughts
about his experiences in Vietnam, guilt feelings, some
sleeping disturbance, and takes antidepression medication.
In the opinion of the VA psychiatrist who last examined the
veteran, the PTSD and depression symptomatology seemed to be
perhaps somewhat less prominent than they had been. PTSD
symptomatology was considered chronic and mild, with a GAF
score of 65 out of 100 assigned.
As the currently assigned 30 percent evaluation adequately
compensates the veteran for his present level of impairment,
the Board must conclude that an evaluation in excess of 30
percent must be denied. Clearly, the criteria for the next
higher evaluation, 50 percent, have not been met. The Board
notes that the former and the revised regulation also set
forth criteria for ratings for PTSD of 70 and 100 percent.
However, in light of the foregoing conclusion, and given the
medical findings with respect to the veteran’s PTSD noted
above, the Board finds that recitation and discussion of
those criteria is unnecessary.
The Board has considered whether an extra-schedular
evaluation pursuant to the provisions of 38 C.F.R.
§ 3.321(b)(1) is warranted. In the instant case, however,
there has been no assertion or showing that the disability
under consideration has caused marked interference with
employment, necessitated frequent periods of hospitalization,
or otherwise renders impracticable the application of the
regular schedular standards. In fact, the veteran is
employed and has had steady employment since 1989. In the
absence of such factors, the Board determines that the
criteria for assignment of an extra-schedular rating pursuant
to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v.
Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
ORDER
A disability evaluation in excess of 30 percent for PTSD is
denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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